“ Sometimes you can only find Heaven by slowly backing away from Hell.”

– Carrie Fisher

ACTUAL CASE HISTORY: I can recall many case histories of clients, and their family members, who have dealt with the reality of addiction to substances, both legal and illegal. I am not an addiction therapist, that is for sure, but I do receive many questions all the time regarding how to best deal with legal issues related to addiction and the workplace. Here are a few issues that I remember having been consulted on:

–Can an employer refuse to hire a person because he or she is a recovering addict, free of use for years?
–Can an employee be terminated for using illicit drugs on his or her days off?
–Is addiction a legally recognized disability under the law?
–Is alcohol addiction treated the same way as drug addiction?
–Is addiction to prescription drugs treated the same way as addiction to illegal drugs?
–If an employee confides with a company Employee Assistance Program (“EAP”) that he or she is having problems with drugs, must the EAP staff maintain strict confidentiality?
–Is misconduct to be excused because it took place while the employee was under the influence of drugs?
–Can an employee be terminated for being a recovering addict?
–If you are experiencing an addiction, is it wise to tell your employer?

Because substance abuse and addiction have recently reached epidemic levels, we have undertaken to address these and related issues as, they arise in the workplace, one by one, step by step, day by day, to the eventual goal of providing our blog visitors with a sound platform for understanding addiction, the law, and the workplace.

This newsletter is one installment in a series on “Addiction, the Law and the Workplace.”

LESSON TO LEARN: We all have our demons, our challenges and our personal mountains to climb. Few of us are without some pains that sometimes scream out to us for some sort of relief. These matters, and the many ways in which they manifest themselves, are necessarily recognized and addressed in the workplace, and in “the law of the workplace,” as well.

Actually, the law is rather forgiving on this subject, consistent with the notion of redemption. Essentially, the law says “If you are helping yourself, we will help you do so, but if you are not helping yourself, you are on your own.” In my view, our Congressmen and Congresswomen have been quite wise in this respect.

[Incidentally, it should be pointed out that addiction to alcohol is treated somewhat differently by the law than is addiction to illegal substances, reflecting the fact that alcohol is a legally acquired addictive substance, in contrast to many other addictive substances. It should also be pointed out that there are some differences between the way the law treats addiction to legally prescribed medications and the way it treats so-called “illicit” ones.]

By our blog efforts we try to assist you, and those you care for, and those care for you, in this context.

WHAT YOU CAN DO: Is drug addiction a legally recognized – and legally protected – disability? If so, why, when and how? Here are ten (10) pointers that may be helpful to keep in mind, whether you or a loved one is dealing with an addiction, or may do so in the future:

1. The Americans with Disabilities Act (the “ADA”) protects certain people from workplace discrimination, and provides certain employees a right to a workplace “accommodation,” on the basis of their addiction. The ADA is the primary federal law that both (a) protects people who have “disabilities” from workplace discrimination, and also (b) provides them the right to “reasonable accommodations” to those disabilities, in the workplace.

A “disability” is generally defined as a “limitation or impairment of a basic life function.” As examples of the ADA in action, a person who cannot walk may not legally be refused a job on that basis, just as others who cannot see, or cannot hear may not be turned down of a job on that basis. Instead, if, with a reasonable accommodation, that person could otherwise do the job, then that disabled person is entitled to a reasonable accommodation.

So, a person who cannot walk may required a bathroom that is wheelchair accessible. A blind person is entitled to such “reasonable accommodation” as braille elevator signs. A person with a hearing deficit is surely entitled to a reasonable accommodation such as a telephone that does not ring when there is a call, but instead perhaps a flashing light, or an extra loud telephone earpiece.

These disabilities are easily recognizable “limitations or impairments of a basic life function” and these accommodations are, likewise, easily understood. In the case of other disabilities, the accommodations that are reasonable may not be so easily recognizable or understood.

2. Why is an addiction considered a disability? If a disability is a limitation or impairment of a basic life function, why is addiction considered a disability? Addiction, though widespread, is not something that can be seen; there is no “picture” of the life functions that are impaired. Indeed, addiction is often viewed as a moral or character weakness.

Recently, in-depth medical studies have shown us that what we call “addiction” has physiological roots, with possible inheritable genetic components, and is not a moral or character weakness. In fact, psychiatry recognizes “Substance Abuse Disorder – what is commonly called “addiction – as a disease in psychiatry’s most common diagnostic manual, called the “DSM.”

The law envisions addiction as a limitation or impairment of an individual’s ability to function in many respects, and so gives those who are addicted degrees of assistance, in certain circumstances, in maintaining their productivity through gainful employment.

It is surely the case that the law views gainful employment, of all possible persons, to the greatest extent possible to be a in society’s overall interests. This is why our society has committed itself to assist them as may be appropriate; so, too, are those with addiction encouraged and supported to be as independent and productive as they can be.

3. Not all claimed “addictions” are covered by the ADA law. Some people claim addiction to sex, while others claim addiction to golf, work, television, gambling, pornography, and even shopping. Medically speaking, psychiatry recognizes dependence of many substances (other than caffeine) as medical disorders, but it does not yet recognize other dependencies as those noted above (sex, pornography or food) as “disorders.” The ADA specifically excludes many such “addictions” from its protections and benefits, and the Courts have also not found many other of such claimed “addictions” to be covered by the ADA.

That said, it would not be surprising if other forms of addiction, not accepted as “disabilities” at this time, may in the future become better understood, more easily accommodated, and thus within the protections of the ADA. That is, as examples, what has happened over time with regard to Attention Deficit Disorder and Post Traumatic Stress Syndrome.

4. Regarding addiction, who is covered by the ADA? Addiction is a rather different kind of disability than most, and thus is addressed differently by the ADA law. Regarding addiction, who should be covered and who should not be covered by the ADA law is often not so easily determined. So, we look to both regulations and Court decisions to make the more difficult distinctions in this area. Regarding addiction, a “qualified individual” under the ADA includes these individuals:

a. A person who suffers from an addiction, who has been successfully rehabilitated and who is no longer engaged in illegal use of drugs;
b. A person who is currently participating in a rehabilitation program and is no longer engaged in the illegal use of drugs; and
c. A person who is erroneously thought to be using illegal drugs.

“Casual” drug use, in the past or at the present time, is not an addiction, and “casual” drug users are therefore not “qualified individuals” or protected by the ADA.

5. One thing is for sure: being a “current drug user” – addicted or not – denies a person the protections and accommodations provided by the ADA law. Without question, an individual who is currently engaging in the illegal use of drugs is not a protected “individual with a disability” for any reason, and thus the ADA affords those persons no workplace protections or rights of any kind. So, they may be denied employment, or terminated from employment on the basis of that drug use.

This is so whether he or she claims (a) discrimination in hiring, (b) unfair treatment by the employer due to disability, (c) retaliation for claiming ADA protections, or (d) termination or suspension for drug use, or misconduct resulting from drug use. It does not matter if the drug use is “casual” use or due to an ongoing addiction: if the employer acts against the person due to actual drug use, the ADA is of no help to the person.

It is also to be pointed out that, as a general rule, those who have lost their jobs due to being under the influence of illicit drugs on the job, or on off hours if it affects the job, do not qualify for unemployment benefits. Simply put, “You use – you lose.”

6. How is “current drug user” defined? The definition of “current drug user” is critical, because the ADA expressly excludes all people classified as “current drug users” from its protections and benefits. It is safe to say that “current drug user” is not capable of clear definition, as it is dependent upon many variables.

The federal Equal Employment Opportunity Commission (often called the “EEOC”) has defined “current” to mean that the illegal drug use occurred “recently enough” to justify the employer’s reasonable belief that drug use is an ongoing problem. The EEOC also provides the following guidance in its Technical Assistance Manual on the ADA:

a. If an individual tests positive on a drug test, which drug test is found to be accurate, he or she will be considered a “current drug user.”
b. If illegal drug use has occurred recently enough to justify an employer’s reasonable belief that involvement with drugs is an ongoing problem.
c. “Current’ is not limited to the day of use, or recent days or weeks, but is determined on a case-by-case basis.

One definition of “current” commonly used by the Courts is “in a periodic fashion during the previous weeks and months.”

7. Can enrolling in a rehab program qualify a person currently using illicit drugs as deserving ADA protections? How does the ADA law view and treat a person who breaks the rules at work, then immediately enrolls in a drug rehab program, and then claims ADA protections and benefits? The EEOC Technical Assistance Manual states that such claims will not be successful:

“An applicant or employee who tests positive for an illegal drug cannot immediately enter a drug rehab program and seek to avoid the possibility of discipline or termination by claiming he or she is in rehabilitation and is no longer using drugs illegally. A person who tests positive for illegal use of drugs is not entitled to the protection that may be available to former users who have been or are in rehabilitation.”

8. What is a “reasonable accommodation” for a drug addiction? As noted above, the ADA provides that disabled employees and job applicants are entitled to “reasonable accommodations” to their disability so that they can be more fully productive citizens. Perhaps among the most commonly requested accommodations by the drug addicted is permission to attend meetings of such organizations as Narcotics Anonymous, and make up the time during off-hours. Another is approval to take a leave of absence to engage in residential treatment.

You can get a copy of our Model Letter Requesting a Disability Accommodation at Work if you just [click here.] It shows you “What to Say, and How to Say It.”™ Delivered by Email – Instantly!

9. For those experiencing health or emotional difficulties related to drug addiction – or if drug addiction is being faced by their family members – the federal Family Medical Leave Act (“FMLA”) is a very valuable tool. A federal law, commonly referred to as “FMLA,” permits those who face medical or emotional difficulties – and their family members – to take as much 12 weeks off from work, unpaid, to help address those issues, and have their jobs back when they return. This often represents a great opportunity to address addiction (of your own or a family member) without fear of losing one’s job for doing so.

For more information about FMLA, you may want to read a blogpost I wrote some time back entitled “FMLA – The 50 Things You May Need to Know.” To do so, just [click here.]

Act Wisely! Consider using our Model Memo Requesting FMLA Information, Forms and Procedures from Human Resources. It shows you “What to Say and How to Say It”™ and makes a permanent record of your request. Just [click here.] Delivered Instantly By Email to Your Printer.

10. Lastly, those experiencing addiction-related problems may be entitled to Short Term Disability (“STD”) or even Long Term Disability (“LTD”) benefits. There are a wide variety of disability insurance programs and policies, some of which provide disability income benefits to those facing drug addiction and/or related difficulties. It is always important to determine what disability policies, if any, may be available from your employer, and the details of those policies. To understand these better, you may want to consult with your employer’s Human Resources department, or an independent disability benefits lawyer in your local jurisdiction.

P.S.: If you would like to speak with me directly about this or other workplace-related subjects, I am available for 30-minute, 60-minute, or 120-minute telephone consultations. (Even 5-minute “Just One Question” calls). Just [click here.] Evenings and weekends can be accommodated.

***We gratefully acknowledge and appreciate the kind assistance of Steve Castleman, Esq., in the preparation of this blogpost.

SkloverWorkingWisdom™ emphasizes smart negotiating – and navigating – for yourself at work. Negotiation and navigation of work and career issues requires that you think “out of the box,” and build value and avoid risks at every point in your career. We strive to help you understand what is commonly before you – traps and pitfalls, included – and to avoid the likely bumps in the road. Knowing how the law can help you or a loved one who is addicted to illegal drugs, can be life-altering or even life-saving.

Always be proactive. Always be creative. Always be persistent. Always be vigilant. And always do what you can to achieve for yourself, your family, and your career. Take all available steps to increase and secure employment “rewards” and eliminate or reduce employment “risks.” Requesting a “Renewal Notice” provision in an existing or new employment agreement is one way to do just that. Learning the “tricks of the trade” is what SkloverWorkingWisdom™ is all about.

*A note about our Actual Case Histories: In order to preserve client confidences, and protect client identities, we alter certain facts, including the name, age, gender, position, date, geographical location, and industry of our clients. The essential facts, the point illustrated and the lesson to be learned, remain actual.

Please Note: This Email Newsletter is not legal advice, but only an effort to provide generalized information about important topics related to employment and the law. Legal advice can only be rendered after formal retention of counsel, and must take into account the facts and circumstances of a particular case. Those in need of legal advice, counsel or representation should retain competent legal counsel licensed to practice law in their locale.

Sklover Working Wisdom™ is a trademarked newsletter publication of Alan L. Sklover, of Sklover & Company, LLC, a law firm dedicated to the counsel and representation of employees in matters of their employment, compensation and severance. Nothing expressed in this material constitutes legal advice. Please note that Mr. Sklover is admitted to practice in the state of New York, only. When assisting clients in other jurisdictions, he retains the assistance of local counsel and/or obtains permission of local Courts to appear. Copying, use and/or reproduction of this material in any form or media without prior written permission is strictly prohibited. All rights reserved. For further information, contact Sklover & Company, LLC, 45 Rockefeller Plaza, Suite 2000, New York, New York 10111 (212) 757-5000.

Repairing the World, One Empowered – and Productive – Employee at a Time™

About Alan L. Sklover

Alan L. Sklover, Employment Attorney and Career Strategist for over 35 years.

Job Security and Career Success now depend on knowing how to navigate and negotiate to gain the most for your skills, time and efforts. Learn the trade secrets and ‘uncommon common sense’ of Attorney Alan L. Sklover, the leading authority on “Negotiating for Yourself at Work.”